Citation Nr: 0825492
Decision Date: 07/30/08 Archive Date: 08/06/08
DOCKET NO. 93-07 780 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Sean Kendall, attorney
WITNESSES AT HEARING ON APPEAL
Appellant and his wife.
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran served on active duty from October 1964 to August
1966.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 1991 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey. Thereafter, the veteran's claims file
was transferred to the RO in San Juan, Puerto Rico. In a
November 1997 decision, the Board denied entitlement to
service connection for PTSD. The veteran appealed the denial
of this claim to the United States Court of Appeals for
Veterans Claims (Court). In a December 1998 order, the Court
vacated and remanded the Board's decision for further
development.
In a March 2002 decision, the Board denied service connection
for PTSD. A February 2003 Court order vacated and remanded
the Board's March 2002 decision for further development
finding that the veteran was provided inadequate notice under
the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA). The Board
remanded the case for further development in September 2003.
In a June 2004 decision, the Board again denied service
connection for PTSD. An August 2005 Court order vacated and
remanded the Board's June 2004 decision for further
development finding that the RO failed to obtain records
referred to in a June 2001 letter, as well as the failure to
obtain other records, which would be pertinent in verifying
the veteran's three stressors.
The Board remanded the case for additional development in
February 2006. The requested development has since been
completed. A hearing was held at the Board before the
undersigned Veterans Law Judge in April 2008. The case is
now ready for appellate review.
FINDINGS OF FACT
The preponderance of the evidence shows that the veteran does
not currently have post-traumatic stress disorder.
CONCLUSION OF LAW
Post-traumatic stress disorder was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002);
38 C.F.R. §§ 3.303, 3.304(f) (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The VA has a duty to provide certain notices to the veteran,
and to assist him with the development of evidence pursuant
to the Veterans Claims Assistance Act of 2000. Initially,
the Board finds that the content requirements of a duty to
assist notice have been fully satisfied. See 38 U.S.C.A. §
5103(a); 38 C.F.R. § 3.159(b). Letters from the RO dated in
March 2004 and July 2006 provided the veteran with an
explanation of the type of evidence necessary to substantiate
his claims, as well as an explanation of what evidence was to
be provided by him and what evidence the VA would attempt to
obtain on his behalf. The letters adequately informed the
veteran that he should submit any additional evidence that he
had in his possession. In addition, a letter issued in
November 2007 included information regarding the assignment
of initial ratings and effective dates. The VA has no
outstanding duty to inform the appellant that any additional
information or evidence is needed. The Board has noted that
the veteran's claim predated the enactment of the Veterans
Claims Assistance Act of 2000. As a result, he was not
provided notification letters until after the initial
adjudication of the claim. However, he has not claimed any
prejudice as a result of the timing of the letters and it
appears that no prejudice occurred. After the issuance of
the letters, he was afforded an appropriate period of time to
submit any relevant evidence, and his claim was subsequently
readjudicated. The Board concludes, therefore, that the
appeal may be adjudicated without a remand for further
notification.
The Board also finds that all relevant facts have been
properly developed, and that all evidence necessary for
equitable resolution of the issue has been obtained. His
service medical records and post service treatment records
have been obtained. He has had a hearing. He has been
afforded appropriate disability evaluation examinations. The
Board does not have notice of any additional relevant
evidence which is available but has not been obtained. In
accordance with instructions contained in a Joint Motion
dated in July 2005, the RO made efforts to obtain copies of
additional records from a hospitalization in service at the
106th General Hospital in Japan by contacting the National
Personnel Records Center, but the center responded in
November 2006 that they had no additional service medical
records. Regarding a request in the Joint Motion that the VA
attempt to obtain additional treatment records from a Jersey
City Veterans Center, the Board notes that the RO wrote to
the veteran in requesting additional information to be used
in obtaining such records, but he did not respond. The RO
has also completed all appropriate stressor development. The
veteran was also afforded another examination by the VA, but
the report shows that he failed to cooperate. The United
States Court of Appeals for Veterans Claims has held that
"[t]he duty to assist is not always a one-way street. If a
veteran wishes help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining the putative evidence." Wood v.
Derwinski, 1 Vet. App. 190, 193 (1991). See also Olson v.
Principi, 3 Vet. App. 480, 483 (1992). For the foregoing
reasons, the Board concludes that all reasonable efforts were
made by the VA to obtain evidence necessary to substantiate
the veteran's claim. Therefore, no further assistance to the
veteran with the development of evidence is required.
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by service. See
38 U.S.C.A. §§ 1110, 1131. Service connection for post-
traumatic stress disorder requires medical evidence
diagnosing the condition in accordance with Sec. 4.125(a) of
this chapter, a link, established by medical evidence,
between current symptoms and an in-service stressor; and
credible supporting evidence that the claimed in-service
stressor actually occurred. 38 C.F.R. § 3.304(f)
The veteran alleges that the death of a hometown friend in
Vietnam and his own injury from a "punji stick" caused his
PTSD. He also alleges that he was a combatant while
stationed in Vietnam and witnessed many casualties and
experienced firefights and incoming mortar rounds. During
the hearing held in April 2008 before the undersigned
Veterans Law Judge, the veteran testified that he believed
that he had developed post-traumatic stress disorder as a
result of his service in Vietnam.
The veteran's service medical records reflect left leg and
ankle complaints in late 1965, prior to his arrival in
Vietnam in January 1966. It was noted that he had fallen in
December 1965, while on leave in Puerto Rico, necessitating
treatment. The records show that he was hospitalized on
March 15, 1966 for a left ankle injury. According to a
hospital admission record, the veteran's injury occurred
after he fell down some stairs in the company area in An Khe.
He was hospitalized for several weeks thereafter for a
possible fracture of the left foot; and aspiration of a left
foot hematoma. He was admitted to the 106th General Hospital
in Japan for further treatment on his lower left extremity in
late March 1966, until at least June 1966. No mention was
made at that time of a puncture wound to the foot. He had
initially arrived in Vietnam in January 1966, and returned to
the United States in July 1966. Service medical records show
no complaints, findings, treatment or diagnoses associated
with a left foot puncture wound or psychiatric complaints,
despite the veteran's claims.
The veteran's service personnel records confirm that he
served with the Headquarters Company, 1st Battalion, 35th
Infantry while in Vietnam. His Military Occupational
Specialty (MOS) was listed as infantry indirect fire crewman.
There is no indication that he received any combat awards or
the Purple Heart.
A submitted April 1966 newspaper article reports on the
interment of a serviceman who died in Vietnam at the age of
25.
A December 1967 VA medical examination report shows the
veteran reported sustaining a left ankle fracture in March
1966, but made no mention of being injured by a booby trap.
VA treatment records, dating from March 1973 to March 1981,
show the veteran initially reported that he injured his left
foot when he stepped on a bamboo booby trap in Vietnam during
treatment for thrombophlebitis in March 1973.
During an August 1982 personal hearing, the veteran testified
that he sustained a foot fracture when he stepped on a bamboo
booby trap during combat. He claimed the injury occurred
nine months after he was stationed in Vietnam.
A June 1990 VA psychology evaluation indicated that
psychiatric testing results were "consistent with a
psychodiagnostic impression of a combat-related PTSD." No
specific stressors were identified.
A July 1990 private psychiatric examination report shows the
veteran reported his problems began four years before with
the divorce from his wife. The examiner diagnosed chronic
undifferentiated schizophrenia and schizotypal personality.
An October 1990 Social Security Administration (SSA)
psychiatric examination indicates the veteran had a
schizophrenic psychosis of recent onset. The diagnosis was
paranoid schizophrenia. SSA records reflect that the veteran
was awarded disability benefits in 1990 primarily due to
schizophrenia. No other psychiatric disorder was diagnosed.
In a November 1990 written statement, the veteran claimed he
injured his foot while in a rest area. He stated that he
fired 81-millimeter mortars during his service in Vietnam and
witnessed three soldiers' deaths when a grenade exploded
while they were cleaning their weapons. He also stated that
a friend from his hometown, later identified as "V.," was
killed when he was shot in the mouth while he and the veteran
were in a helicopter in Vietnam.
The veteran was afforded a VA psychiatric examination in
December 1990. He stated that during his nine months of
service in Vietnam, he participated in firefights and was
exposed to incoming mortars and artillery. He reported
having witnessed many casualties, including civilians. When
asked to provide details of specific combat stressors, he was
reported to have become sullen and tearful, remaining silent.
His responses were characterized as very sparse and evasive.
He stated he was not wounded in combat, but injured his left
foot in a fall. The examiner diagnosed severe PTSD.
During his June 1992 personal hearing, the veteran testified
that when he arrived in Vietnam, he found out "Sgt. V.," a
friend from his hometown, had died in combat. He was unable
to identify V.'s unit, or supply his first name. Sometime
after learning of the death, he was riding in a convoy that
was ambushed and, seeking cover, he fell into a hole where
his left foot was injured by a "punji stick." He testified
that he was in Vietnam for six months prior to his foot
injury and that he spent Christmas in Vietnam. A childhood
friend testified that he remembered the veteran was sent to
Vietnam in Christmas 1965 and that he again saw the veteran
in June or July 1966 when the veteran told him that he had
injured his foot on a booby trap.
A September 1992 VA psychiatric examination, conducted by a
board of three psychiatrists, notes that the veteran
repeatedly mentioned the death of his close friend (whose
name he could not recall), and nightly visits of his deceased
father. After examining the veteran and reviewing the
evidence in his claims file, the board of psychiatrists noted
that the veteran tried to present a sicker picture of himself
than previously described. The psychiatrists diagnosed an
unspecified mental disorder.
In an April 1995 written statement, the veteran stated that
he was fighting alongside "Sgt. V." when he died and the
veteran was wounded. They were both riding in a truck convoy
when they came under attack. The veteran also stated they
were both in the same company at the time. The veteran
submitted a DD Form 1300 Report of Casualty for the veteran's
alleged friend, indicating he died on March [redacted], 1966,
as a result of gunshot wound received in hostile ground
action.
An April 1995 statement from Jesus Infanson Ochoteci, M.D.,
indicates he had treated the veteran on several occasions
since 1992 for psychiatric disabilities. According to Dr.
Ochoteci, the veteran's symptoms supported a diagnosis of
PTSD. No specific stressors were listed; the veteran was
described as a "Vietnam Conflict" veteran.
An October 1995 VA psychiatric examination report conducted
by a board of two psychiatrists shows the examiners reviewed
the veteran's claims folder and medical history. The veteran
reported that he and V. came under hostile fire while they
were riding in a military vehicle, and that V. was shot while
seeking cover. After interviewing the veteran, the
psychiatrists concluded that his symptoms did not support a
diagnosis of PTSD; rather, "a typical psychotic picture" was
evident. Subsequent to reviewing the December 1995 VA social
and industrial survey, the examiners concluded that a
diagnosis of undifferentiated schizophrenic disorder was
warranted.
The December 1995 VA social and industrial survey shows that
the veteran stated that he stayed home most of the time and
had limited social interaction because of his psychiatric
conditions. He did not visit his relatives in the area.
However, one of the veteran's neighbors stated that he
visited his sister in the area, driving himself in his car,
shopped, and did household chores.
In December 1999, the VA physician who initially examined the
veteran in December 1990 and diagnosed PTSD, reviewed the
claims file and subsequent medical history. The physician
noted that at the time of the previous examination, the
veteran had denied being wounded in combat, although he spoke
in general of being exposed to mortars and artillery,
witnessing casualties, and injuring his leg. The
psychiatrist stated that the PTSD diagnosis had been based on
the veteran's description of his symptoms. The physician
opined that the veteran's inability at the time of
examination to give details regarding specific combat
stressors prevented a conclusion of causal nexus between his
symptomatology and his "combat" experience and further opined
that a clear medical diagnosis of PTSD was not warranted at
the time of the examination.
In June 2001, a report from the U.S. Armed Services Center
for Research of Unit Records ("Records Center") was received
concerning the veteran's claimed stressors. According to the
report, a serviceman, P. V., was killed by small arms fire in
Vietnam on March 15th, 1966. His rank was E-3 (Private First
Class) and he served in Company A, 1st Battalion, 35th
Infantry.
During a July 2001 VA psychiatric examination, it was noted
that the veteran had had no psychiatric hospitalizations but
had received psychiatric care. He selectively answered
questions and concentrated his speech "on soldiers" and his
"alleged PTSD." The examiner commented that the veteran was
very conscious in presenting memory problems, which were
selective. The examiner noted that the veteran was receiving
Social Security disability benefits for schizophrenia.
After examining the veteran and thoroughly reviewing the
claims file, the VA examiner stated that the veteran did not
meet the diagnostic criteria for PTSD. Malingering and
antisocial personality were diagnosed instead. The examiner
pointed out that the veteran's stressor, the death of V.,
occurred on a day when he injured his ankle, but not in
combat. Other inconsistent statements were noted, such as
his reports that he stayed in his room all day versus his
statement that he had "drastic reactions" when seeing
National Guard convoys when traveling by car. The examiner
opined that the veteran was claiming situations, history and
details of service, which were contradictory to the official
reports in the records. He stated that the veteran's intent
was to gain benefits, and noted that the earlier diagnosis of
PTSD was clarified as being erroneous by the examiner who
rendered it.
The Board remanded the case for additional development of
stressors in February 2006 pursuant to instructions contained
in a Joint Motion dated in July 2005. The RO subsequently
obtained various service records such as duty officer's logs,
as well as a memorandum from the JSRRC regarding stressors.
The RO later prepared a list of stressors which were viewed
as having been confirmed, and requested another VA
psychiatric examination.
The report of a psychiatric examination conducted by the VA
in August 2007 reflects that the examiner noted that the
veteran reported symptoms such as being confused since
leaving Vietnam; having severe forgetfulness on a daily
basis; and having a depressed mood and feeling persecuted.
Regarding his education, the veteran reported that he did not
remember. Regarding his family structure and the environment
where he was raised, the veteran stated that he did not
remember. Regarding the quality of peer relationships and
social adjustment, the veteran said that he did not remember.
Regarding his performance in school, the veteran indicated
that he did not remember. Regarding the types of jobs he had
held, the veteran stated that he did not remember. Regarding
whether there were issues with alcohol use or substance
abuse, the veteran stated that he did not remember. The
veteran reported that he was in the Army, but did not
remember his rank at discharge. The veteran reported that he
had an occupational specialty of infantry, and did not
remember his decorations and awards. He reported having had
combat experience, and said that he sustained combat wounds.
He specified that he fell in a trap and receive trauma to the
left foot. He also stated that during an ambush, his friends
Pedro and Lee died. He further stated that he saw many
people in the rice paddy fields die.
On mental status examination, it was noted that the veteran
was neatly groomed, restless, his speech was spontaneous, and
he was guarded and nervous with a constricted affect. He did
not cooperate with tests of attention such as spelling a
word. He did not cooperate regarding assessment of thought
process and thought content. He also did not cooperate in
assessments of judgment, intelligence, insight, and memory.
The examiner concluded that diminished effort was strongly
suspected on the basis of observations and tests. It was
furthers stated that since the patient showed diminished
effort in these short screening tests, it was very unlikely
that he would cooperate in a more extensive four hour
neuropsychological evaluation. An Axis I diagnosis was
deferred, and it was again noted that the veteran did not
cooperate with the evaluation of with the neuropsychological
screening and testing.
During the hearing held in April 2008, the veteran testified
that he had been in the infantry in Vietnam, and was in an
area with a lot of combat and saw his best buddy get killed.
He said that since then he had not been well and had been
under psychiatric evaluation. He recounted having feelings
of suicide, and being treated with thorazine. The veteran
stated that he was currently taking medication for PTSD. The
veteran denied that he failed to cooperate at the recent VA
examination. The veteran also encountered that he first
sought medical treatment three years after separation from
service. Later in the hearing, however, the veteran stated
that the first time he received treatment was in 1987. The
veteran's wife presented her own testimony describing the
veteran's psychiatric symptoms such as nightmares and
startling easily.
Finally, the veteran has submitted a written statement dated
in June 2008 from Dr. J. A. Juarbe. He stated that the
veteran had a history of having been under fire a lot and
being wounded in combat when he fell into a bamboo trap. The
veteran reported having continuous nightmares. He concluded
that the veteran suffered from chronic and severe PTSD that
was directly related to the traumatic war experience in
Vietnam.
After reviewing the evidence which is of record, the Board
finds that the preponderance of the evidence weighs against
the claim for service connection for post-traumatic stress
disorder. The Board finds that the weight of the medical
evidence which has been obtained reflects that the veteran
does not currently have post-traumatic stress disorder. In
this regard, the Board notes that the veteran's psychiatric
diagnoses have varied over the years, but the most convincing
psychiatric records reflect diagnoses other than post-
traumatic stress disorder. In reaching this conclusion, the
Board has noted that some older VA records and private
examination reports contain a diagnosis of PTSD.
Significantly, however, more recent and more extensive
records of treatment and evaluation reflect that the veteran
does not have PTSD.
The Board finds that the reports of the August 2007, July
2001, October 1995, and September 1992 VA psychiatric
examinations, as well as the December 1999 memorandum from
the VA psychiatrist who examined the veteran in December
1990, and the July and October 1990 private psychiatric
examinations, are more probative on the question of proper
psychiatric diagnosis than the June 1990 VA psychological
assessment, the April 1995 evaluation of Dr. Ochoteci and the
June 2008 report by Dr. Juarbe. The VA September 1992 and
October 1995 psychiatric examinations were completed by three
and two-member boards, respectively. Moreover, the October
1995 and July 2001 VA examiners specifically reviewed the
veteran's claims files. Therefore, the examiners' opinions
and subsequent diagnoses were based on a formal mental status
examination, as well as consideration of the veteran's
alleged combat history and his past and present social and
psychiatric status. These examiners specifically found that
the veteran did not have any findings to support a PTSD
diagnosis.
Likewise, the December 1990 VA examiner, after having an
opportunity to review the veteran's medical records and
service records, also concluded that the earlier diagnosis of
PTSD was not warranted. Several of the examiners noted the
inconsistencies in the veteran's reports of his alleged
stressors.
On the other hand, review of the June 1990 psychological
evaluation does not indicate that the veteran's records were
reviewed and the diagnosis appears to be based on
psychological testing only. Moreover, Dr. Ochoteci's April
1995 evaluation does not discuss any alleged stressors and
appears to have relied solely on the veteran's history in
concluding that his symptoms were consistent with a PTSD
diagnosis. Similarly, the opinion from Dr. Juarbe appears
to be superficial in nature, with no extensive discussion of
the veteran's history or consideration of alternative
diagnoses.
The Board is free to favor one medical opinion over another.
Evans v. West, 12 Vet. App. 22, 26 (1998). The Board
concludes that the VA examination reports are the most
probative medical evidence which is of record. They were
based on interview of the veteran plus a thorough review of
his medical history. The reports weigh against the claim as
they shows that the veteran does not have PTSD. In Cohen v.
Brown, 10 Vet. App. 128 (1997), the United States Court of
Appeals for Veterans Claims (Court) held that, for the
purposes of establishing service connection for post-
traumatic stress disorder, there must be an unequivocal
current diagnosis of post-traumatic stress disorder.
Similarly, the Court held in Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992) that a service-connection claim must be
accompanied by evidence which establishes that the claimant
currently has the claimed disability. In the present case,
however, the preponderance of the competent medical evidence
shows that the veteran's symptoms do not support a diagnosis
of post-traumatic stress disorder. Accordingly, the Board
concludes that post-traumatic stress disorder was not
incurred in or aggravated by service.
ORDER
Service connection for post-traumatic stress disorder is
denied.
____________________________________________
JOAQUIN AGUAYO-PERELES
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs